This year, legislatures in Montana, Minnesota and Texas are threatening to pass bills making it far more difficult for a ballot-qualified party to remain on the ballot, and making the new requirement go into effect before the 2024 election. This is shocking behavior. It has long been the custom that when a state makes it more difficult for a ballot-qualified party to remain on the ballot, the change does not take effect until after the next election, to give any affected party a chance to try to meet the new requirement.

The Minnesota and Texas bills raise the vote test to 10%, and the Montana bill raises it to 5% of the number of registered voters. The Minnesota bill would eliminate the Legal Marijuana Now Party; the Montana bill would eliminate the Libertarian and Green Parties; the Texas bill would eliminate the Green Party immediately although the Libertarian Party would remain on the ballot for a few more elections because the Libertarian Party polled over 10% for a statewide race in 2018.

Here is a link to an unreported order of a U.S. District Court in the southern district of Ohio, from 2014. It grants injunctive relief to the Ohio Libertarian Party, to keep it on the ballot in 2014. The legislature in late 2013 had passed a bill removing the Libertarian, Green, Socialist and Constitution Parties from the 2014 ballot unless they did a new, severe petition, but the judge said that due process required making that change effective after the 2014 election, not before.

BAN is posting this court order so it will be a resource for activists trying to fight the Minnesota, Montana and Texas bills.

Until 2023, the last states that had removed a party from the ballot effective before the next election had been Alabama in 1982 and Arkansas in 1971. But the U.S. Justice Department countermanded the Alabama effective date, and a U.S. District Court in Arkansas struck down the 1971 law, several years afterwards. A 3-judge U.S. District Court in Michigan had prevented Michigan from making a hostile change immediately in 1976, and that decision is not only reported, it was summarily affirmed by the U.S. Supreme Court. Hudler v Austin, 49 F.Supp.1002 (e.d.Mich 1976), 430 U.S. 924 (1977).

Montana Senator Greg Hertz (R-Polson) has introduced SB 566. Hertz is also the author of SB 565, which attacks ballot access directly. SB 566 sets up a top-two system, but only for U.S. Senate and only for 2024. On April 3 the bill passed the Senate State Administration Committee and passed the State Senate on second reading, by 27-23. It is not officially through the Senate until it passes on third reading, but generally the second reading vote and the third reading vote are identical. The bill will probably pass the State Senate on Tuesday, April 4. UPDATE: it passed the Senate on April 4, 27-23.

Hertz openly states that the purpose of imposing a top-two system for just one office is to keep the Libertarian Party off the ballot for that office in 2024. He says he wants the winner to receive a majority of the vote in the general election, but he could do that either by an old-fashioned general election runoff (as done in Louisiana and Georgia), or by implementing ranked choice voting.

The Libertarian Party is perceived as having cost the Republicans a U.S. Senate seat in Montana in 1996, 2006, and 2012. Democrats won all three times with a plurality vote. Of course, no one knows who the Libertarian voters would have voted for if they had not been able to vote for the Libertarian.

The Mississippi legislature adjourned on March 31, and did not pass the bill to restore the initiative process. This is the second year in a row in which that has happened.